United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant Bank of
America, N.A.'s (“Bank of America”) Motion to
Dismiss, ECF No.  (the “Motion”). The Court
has carefully reviewed the Motion, all opposing and
supporting briefs, the record in this case, the applicable
law, and is otherwise fully advised. For the reasons set
forth below, the Motion is granted.
Ray Berry and Courtney Berry (collectively
“Plaintiffs”), filed this action on April 4,
2018, against Bank of America for violations of the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. §
1681. ECF No. . According to the Complaint, Plaintiffs and
Bank of America entered into a loan agreement secured by a
mortgage. Id. at ¶ 11. While Plaintiffs made
all required payments towards the loan for principal and
interest, they allege that Bank of America improperly applied
part of their payments toward escrow. Id. at ¶
12-14. As a result, Plaintiffs' credit was adversely
affected by showing a shortage of payments and a default
under the loan. Id. at ¶ 17. Plaintiff alleges
it notified Bank of America of its improper application of
payments, by letter dated November 15, 2015, and demanded the
correction of information reported to credit bureaus.
Id. at ¶ 19. Despite its receipt of this
letter, Bank of America failed to conduct a reasonable
investigation and failed to supply accurate information to
credit bureaus. Id. at ¶21. As a result,
Plaintiffs allege that Bank of America violated 15 U.S.C.
§§ 1681i and 1681s-2(B). Id. at ¶ 9.
America moves to dismiss Plaintiffs' claims on three
separate grounds: (1) lack of standing, (2) the FCRA's
statute of limitations, and (3) failure to state a claim.
See ECF No. . Plaintiffs and Bank of America
thereafter filed a timely response and reply respectively.
See ECF Nos.  and . The Motion is now ripe
pleading in a civil action must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a
complaint “does not need detailed factual allegations,
” it must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule
8(a)(2)'s pleading standard “demands more than an
accusation”). Nor can a complaint rest on
“‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)).
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians
of Fla. v. S. Everglades Restoration Alliance, 304 F.3d
1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co.
v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353
(S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as
true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir.
2006). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative
explanations,' which suggest lawful conduct rather than
the unlawful conduct the plaintiff would ask the court to
infer.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal,
556 U.S. at 682). A court considering a Rule 12(b) motion is
generally limited to the facts contained in the complaint and
attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009);
Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337,
1340 (11th Cir. 2005) (“[A] document outside the four
corners of the complaint may still be considered if it is
central to the plaintiff's claims and is undisputed in
terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). It is
through this lens that the Court addresses the Motion.
America argues that Plaintiffs lack standing under Article
III of the Constitution because they failed to allege a
concrete injury. In its Reply, however, Bank of America
appears to abandon this argument as it fails to address any
of Plaintiff's arguments or case law cited in support of
standing. Nonetheless, as standing presents a threshold
question of subject-matter jurisdiction, the Court addresses
whether Plaintiff satisfies the injury-in-fact requirement.
establish Article III standing, a “plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016). “To establish injury in fact, a
plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest' that is
‘concrete and particularized' and ‘actual or
imminent, not conjectural or hypothetical.'”
Id. at 1548 (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). “For an
injury to be particularized, it must affect the plaintiff in
a personal and individual way.” Id. at 1548
(internal quotation marks omitted). “A concrete injury
must be de facto; that is, it must actually
exist.” Id. at 1548 (internal quotation marks
omitted). “When we have used the adjective
‘concrete,' we have meant to convey the usual
meaning of the term- ‘real,' and not
‘abstract.'” Id. at 1548. However,
concrete injuries need not necessarily be tangible.
Id. at 1549-50 (using the example of reporting an
incorrect zip code as one that would not equate to any
concrete harm, while inaccurately reporting a debt as
delinquent would equate to concrete harm). In fact, a FCRA
violation that causes a “material risk of harm”
could be sufficient to confer Article III standing.
Id. at 1550.
Plaintiffs sufficiently claim an “injury in fact”
to satisfy Article III standing. Specifically, the Complaint
alleges damages consisting of: (a) their impaired ability to
rebuild creditworthiness; (b) misinformation provided to
third-parties about the status of their account; (c) the loss
of a line of credit; and (d) damage to their reputation. ECF
No.  at ¶ 24. Plaintiffs' allegations demonstrate
a particularized and concrete injury in that Bank of America
provided inaccurate information about their payment history,
which in turn affected their creditworthiness and resulted in
the loss of a line of credit. See Keller v. Experian
Info. Sols., Inc., No. 16-cv-04643-LHK, 2017 WL 130285,
at *4 (N.D. Cal. Jan. 13, 2017) (finding that the plaintiff
sufficiently alleged a concrete injury for Article III
standing when the complaint claimed that inaccurate debt
delinquency was reported) (citing Spokeo, 136 S.Ct.
at 1549-50). In addition, Plaintiffs allege that they
sustained damage to their reputation - another particularized
and concrete “injury in fact.” See Gambles v.
Sterling Infosystems, Inc., 234 F.Supp.3d 510, 524
(S.D.N.Y. 2017) (finding that inaccurate reporting of
plaintiff's address history that “cast [plaintiff]
as itinerant, shiftless, and risky, thereby undermining
[plaintiff's] prospects for employment, ” was
sufficient to establish a material risk of harm necessary for
Article III standing). As such, the Court concludes that
Plaintiffs have alleged a sufficient injury in fact to
establish the existence of Article III standing.